Thursday, June 28, 2012

The Free Exercise Issues As To the Individual Mandate That Were Not Decided By SCOTUS Today

As has been widely reported, today in National Federation of Independent Business v. Sebelius, (Sup. Ct., June 28, 2012), the U.S. Supreme Court upheld the constitutionality of the individual mandate in the Patient Protection and Affordable Care Act (often referred to by its detractors as "Obamacare"). However the Court's opinions did not deal with narrower conscience challenges to the individual mandate. These have generally been rejected by lower courts. The Affordable Care Act (26 USC 5000A(d)(2)) has two explicit, but narrow conscience exemptions from the mandate to buy health insurance:

(1) members of religious sects, such as the Amish, who are exempt from Social Security taxes under exiting law. These are described in Sec. 1402(g) of the Internal Revenue Code:

a member of a recognized religious sect ... [who] is an adherent of established tenets or teachings of such sect ... by reason of which he is conscientiously opposed to acceptance of the benefits of any private or public insurance which makes payments in the event of death, disability, old-age, or retirement or makes payments toward the cost of, or provides services for, medical care...

(2) members of health care sharing ministries.

Some lawsuits have unsuccessfully claimed that these exemptions violate the Establishment Clause by privileging some religious sects over others.

Beyond this, individuals who do not fit into either of these two specific groups of statutory exemptions have brought claims that their free exercise rights are violated by the individual mandate. One type of claim is that rejected by the D.C. Circuit in Seven Sky v. Holder (see prior posting), where plaintiff alleged (see prior posting) that she:

has a sincerely held religious belief that God will provide for her physical, spiritual, and financial well-being. Being forced to buy health insurance conflicts with Seven-Sky's religious faith because she believes that she would be indicating that she is not really sure whether God will, in fact, provide for her needs, so she needs to rely on a health insurance policy as a back-up plan.

A second type of conscience objection-- also rejected by lower courts-- has been raised by those who claim that payments required under the Act will somehow be used for abortion services. An elaborate compromise adopted as part of the Act was designed to prevent this (see prior posting), and decisions such as the district court's in Liberty University Inc. v. Geithner have held that "the Act contains strict safeguards at multiple levels to prevent federal funds from being used to pay for abortion services beyond those in cases of rape or incest, or where the life of the woman would be endangered." A similar result was reached by at least one Circuit Court judge. (See prior posting.)" The only mention of religious exemptions in today's opinions came in Justice Scalia's dissent as part of his argument that the individual mandate is not an exercise of Congress' taxing power. He said:

That §5000A imposes not a simple tax but a mandate to which a penalty is attached is demonstrated by the fact that some are exempt from the tax who are not exempt from the mandate—a distinction that would make no sense if the mandate were not a mandate. Section 5000A(d) exempts three classes of people from the definition of “applicable individual” subject to the minimum coverage requirement: Those with religious objections or who participate in a “health care sharing ministry,§5000A(d)(2); those who are “not lawfully present” in the United States, §5000A(d)(3); and those who are incarcerated, §5000A(d)(4). Section 5000A(e) then creates a separate set of exemptions, excusing from liability for the penalty certain individuals who are subject to the minimum coverage requirement: [e.g.] Those who cannot afford coverage.... If §5000A were a tax, these two classes of exemption would make no sense; there being no requirement, all the exemptions would attach to the penalty (renamed tax) alone.